Leonard et al v. Doyle et al

Filing 21

ORDER re 20 MOTION to Compel Production of Documents filed by Michel Gehl, Terry Leonard, Ben Woods, Steven Kendley, Levi Read, Set Deadlines/Hearing as to 20 MOTION to Compel Production of Documents :( Responses due by 12/26/2012.) Signed by Jeremiah C. Lynch on 12/12/2012. (TCL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
_____________________________________________
TERRY LEONARD, STEVEN
KENDLEY, MICHAEL GEHL,
BEN WOODS, and LEVI READ,

CV 12-25-M-DLC-JCL

Plaintiffs,
ORDER
vs.
ALAN JAY DOYLE, MICHAEL
SARGEANT, DAN DURYEE, and
DAN YONKIN,
Defendants.
_____________________________________________
Plaintiffs Terry Leonard, Steven Kendley, Michael Gehl, Ben Woods, and
Levi Read filed a motion to compel Frank Bowen, a Game Warden employed by
the State of Montana (dkt. 20-3 at 5), to comply with a Fed. R. Civ. P. 45
subpoena that Plaintiffs issued to him on October 2, 2012. The subpoena, together
with a notice of deposition issued by Plaintiffs’ counsel, directed Mr. Bowen to
appear for his deposition, and to bring certain documents identified in the
subpoena with him to the deposition.
By letter dated October 9, 2012, Jack Lynch, Agency Legal Counsel for the
Montana Fish, Wildlife & Parks, informed Plaintiffs’ counsel that he believed the
subpoena issued to Mr. Bowen required him to produce documents that are
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protected from disclosure under the Montana Criminal Justice Information Act,
Mont. Code Ann. § 44-5-101 et seq. Thus, Mr. Lynch advised that, to comply
with the requirements of the Criminal Justice Information Act, a “privilege log of
the privileged information” would be prepared and presented at Mr. Bowen’s
deposition. Dkt. 20-4.
On November 12, 2012, Mr. Bowen appeared for his deposition, but at Mr.
Lynch’s direction he did not bring the documents identified in the subpoena. Mr.
Lynch attended the deposition and provided a “privilege log” to Plaintiffs’ counsel
with respect to the documents he instructed Mr. Bowen not to produce.
Based on Mr. Bowen’s failure to produce the subpoenaed documents,
Plaintiffs now move to compel him to do so. For the reasons stated, though, the
procedural posture of Plaintiffs’ motion requires a response from Mr. Lynch and
Mr. Bowen.
An individual commanded to produce documents as directed in a Rule 45
subpoena may serve, on the party who issued the subpoena, written objections to
the required production within 14 days after the subpoena is served. Fed. R. Civ.
P. 45(c)(2)(B). Although disputed by Plaintiffs, Mr. Lynch’s October 9, 2012
letter may constitute Mr. Bowen’s timely objections to the subpoena under Rule
45(c)(2)(B) which, in turn, provide the grounds for Plaintiffs’ present motion to
compel under 45(c)(2)(B)(I).
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Additionally, a person may withhold from production information protected
from disclosure by an identified privilege. Fed. R. Civ. P. 45(d)(2)(A). In doing
so, however, the person must produce a privilege log that is sufficient to “enable
the parties to assess” the privilege claimed. Fed. R. Civ. P. 45(d)(2)(A)(ii).
Although a person objecting to a subpoena on the basis of a privilege must
advance that objection within 14 days of being served with the subpoena, the full
privilege log may be produced “within a reasonable time” thereafter. In re
Department of Justice Subpoenas to ABC, 263 F.R.D. 66, 70 (D. Mass. 2009)
(quoting In re DG Acquisition Corp, 151 F.3d 75, 81 (2nd Cir. 1998)).
Based on the foregoing, and in view of Plaintiffs’ motion to compel, IT IS
HEREBY ORDERED as follows:
1. The Clerk of Court shall serve a copy of this Order on the parties, and on
Jack Lynch, Agency Legal Counsel, Montana Fish, Wildlife & Parks, P.O. Box
200701, Helena, Montana 59620-0701; and
2. On or before December 26, 2012, Mr. Lynch shall file, on behalf of Mr.
Bowen, a brief in response to Plaintiffs’ motion to compel, together with a copy of
the privilege log he gave to Plaintiffs’ counsel at Mr. Bowen’s November 12, 2012
deposition.
DATED this 12th day of December, 2012.

Jeremiah C. Lynch
United States Magistrate Judge
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